May 18, 2020

Current Trends in CERCLA Enforcement

Sarah McLain, Naomie Droll, and Aaron Villalpando

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the U.S. Environmental Protection Agency (EPA) has several tools available to enforce environmental remediation including issuing compliance orders, recovering costs from potentially responsible parties (PRPs), and negotiating settlement agreements. This article explores current EPA enforcement actions under CERCLA.

Financial Responsibility Requirements Under CERCLA Section 108(b)

In 1980, the original CERCLA statute required the EPA to promulgate regulations requiring that certain classes of industry provide financial assurance to ensure the completion of cleanup activities from their industrial operations. CERCLA § 108(b), 42 U.S.C. § 9608(b). CERCLA directed the EPA to begin this rulemaking process, “Not later than three years after December 11, 1980.” EPA failed, however, to meet this statutory duty––or to come anywhere close. Nearly 30 years later, environmental plaintiffs sued the EPA and a federal court ordered the EPA to begin this much-delayed process. Sierra Club v. Johnson, 2009 WL 482248 (N.D. Cal. 2009). In 2009, EPA announced their decision to prioritize financial responsibility requirements for the hard rock mining industry. After more delay by the EPA, environmental groups petitioned for a writ of mandamus, asking the court to order the EPA to issue financial responsibility requirements on this industry. In re Idaho Conservation League, 811 F.3d 502 (D.C. Cir. 2016). The EPA agreed to propose a rule for the hard rock mining industry in 2016, and to take final action in 2018. Thereafter, the EPA proposed a rule that would place financial responsibility requirements under CERCLA section 108(b) for classes of facilities in this industry. Fed. Reg. 82, no. 7. After objections from the U.S. Bureau of Land Management, the U.S. Forest Service, state agencies, and industry representatives, the EPA announced on February 21, 2018 (Fed. Reg. 83, no. 35), that it had “decided not to issue financial responsibility regulations for [the] hardrock mining industry.” The EPA made this decision because they found that modern mining practices, along with existing federal and state programs, made it less likely that the EPA would need to use Superfund resources to fund response actions at active mines.

The EPA continued to endure litigation brought by environmental groups, which culminated in the recent decision in Idaho Conservation League v. Wheeler, 930 F.3d 494 (D.C. Cir. 2019). Environmental groups argued that the EPA wrongly interpreted “risk,” and that regardless of the term’s meaning, CERCLA requires the EPA to create financial responsibility requirements for the hard rock mining industry. They also argued that the EPA’s decision to not issue financial responsibility requirements was arbitrary and capricious. Lastly, they argued that the court should vacate the decision because it was not the “logical outgrowth” of the proposed rule.

Much of the environmental groups’ arguments included critique of the EPA’s interpretation of the rule’s definition for “risk,” claiming that the EPA did not adequately consider health and damage to the environment. Environmental groups were also concerned that the EPA did not consider that the hard rock mining industry has a higher rate of bankruptcy than most industries, therefore, has a high potential of creating abandoned hazardous waste. The court held that EPA has total discretion when it comes to deciding what facilities will require financial responsibility requirements and that their action was not arbitrary and capricious. Furthermore, they held that deciding not to require financial responsibility for the hard rock mining industry is technically a “logical outgrowth” of the proposed rule.

UAO and Modified Work Order Issued against Sunnyside Gold Corporation

CERCLA is a strict liability statute, therefore, PRPs can be held responsible for cleanup regardless of fault. In 2018, the EPA identified Sunnyside Gold Corporation (SGC) as a PRP liable for the Gold King Mine spill near Silverton, Colorado, even though the EPA was also directly responsible for the spill. Nevertheless, SGC was a valid PRP as a current owner and past operator of the Sunnyside Mine located within the Bonita Peak Mining District (BPMD) Superfund site, the same Superfund site where the Gold King Mine is located.

After SGC was identified as a PRP, the EPA issued a unilateral administrative order(UAO) to SGC. The UAO ordered SGC to conduct remedial investigation at the BPMD Superfund site. More than a year later, in 2019, the EPA increased the burden of SGC’s work at the BPMD Superfund site by issuing a Modified Statement of Work. In a response letter to the EPA, SGC declined to accept the Modified Statement of Work, stating that it was an illegal order. SGC has continued to challenge EPA’s enforcement authority. However, EPA’s authority under CERCLA section 106(a) to issue UAOs is one of its most powerful enforcement authorities. Although powerful, UAOs are rarely used –the EPA prefers to enforce PRP-lead cleanups through settlements instead. The last UAO issued prior to SGC’s UAO was in 2016. Since the EPA’s last issuance of a UAO to SGC in 2018, the EPA has entered into three consent orders.

Settlement with Atlantic Richfield Co.

In February 2020, the EPA and Atlantic Richfield Co. reached a settlement agreement to clean up one the nation’s largest Superfund sites. The Silver Bow Creek/Butte Area Superfund (Butte) site is a historical mining site that has generated a variety of mining and smelting wastes. In 2017, the EPA placed the Butte site on a priority list of 21 Superfund sites. After 37 years of being a Superfund site, a settlement agreement has finally been reached between the EPA and Atlantic Richfield Co. by consent decree. The consent decree outlines the cleanup and remediation work of the Butte site. Additionally, the consent decree commits Atlantic Richfield Co. to spend at least $150 million in cleanup activities and sets out the work that would be needed to take the Butte site off the nation's Superfund list of contaminated sites. Before the proposed agreement takes effect, it must be filed with the court and go through a public comment period.

New NPL Listings

New contaminated sites continued to be added to the Superfund National Priorities List (NPL), including two new sites added on November 8, 2019. The first is Schroud Property, an abandoned slag dumping site on the southeast side of Chicago, Illinois. The site served as a dumping ground for Republic Steel from 1951 to 1977, leaving the 67-acre property contaminated with lead, chromium, hexavalent chromium, cyanide, mercury, and manganese. Rather than using the Hazard Ranking System, the Schroud Property was listed through the state petitioning for the addition. The second listed site is the Arsenic Mine in Kent, New York. The Arsenic Mine Site was operated by multiple companies over the years, until 1918 when it was abandoned. In 2016, while repairing a leak in an EPA installed water system, sediment was found entering the system. Following soil sampling of the area it was determined that because the arsenic levels were so high, it would be more cost efficient to use CERCLA’s remedial action than removal (more information on the site can be found here).

Recent Court Decisions

Prior to the UAO being issued to SGC, the corporation challenged the EPA’s finding that all sites within BPMD were to be included on the NPL. In Sunnyside Gold Corporation v. EPA, 715 Fed. Appx. 7 (D.C. Cir. 2018), SGC argued that the EPA was required to score each individual source in order to list BPMD was a whole onto the NPL. The court held that because Hazardous Ranking System (HRS) extends the definitions of “site” to include multiple sources and areas in between the sources, and that because the mine at issue was an area in between, it was lawful for the EPA to list BPMD as a whole.

On February 14, 2020, the D.C. Circuit reversed a dismissal motion decision for Gov’t of Guam v. United States, –– F.3d. ––, 2020 WL 741303 (D.C. Cir. 2020). While the government of Guam wished to recover costs, $160 million, from the United States for contamination at the Ordot dumpsite, the lawsuit was filed 10 years after the statute of limitations had run. The government of Guam tried to recover under section 107(a) and alternatively under 113(f). The court held that sections 107 and 113 were mutually exclusive and because the government of Guam settled with the EPA it could no longer recover under section 113 as the statute of limitations had run. Additionally, by entering into the Consent Decree with the EPA, the government of Guam could no longer recover under section 107.

Currently, the Supreme Court of the United States is deciding Atlantic Richfield Co. v. Christian, a case that has presented three questions to the court: (1) Whether CERCLA preempts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-order remedies? (2) Are landowners at a Superfund site PRPs that must seek EPA approval under 42 U.S.C. § 9622(e)(6) before engaging in remedial actions? and (3) Whether there is a bar to challenges of common-law claims for restoration that conflict with the EPA ordered remedies under CERCLA.

Sarah McLain, Naomie Droll, and Aaron Villalpando

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Sarah McLainandNaomie Drollare students at the University of New Mexico School of Law Class of 2021 and Aaron Villalpando is a student at the University of New Mexico School of Law Class of 2020.